FIRST DIVISION

[G.R. No. L-37409. May 23, 1988.]

NICOLAS VALISNO, plaintiff-appellant, vs. FELIPE ADRIANO,defendant-appellee.

Honorio Valisno Garcia I for plaintiff-appellant.

Felipe K. Medina for defendant-appellee.

D E C I S I O N

GRIÑO-AQUINO, J p:

This case was certified to this Court by the Court of Appeals in a resolution datedAugust 10, 1973, the sole issue being a question of law and beyond its jurisdictionto decide.

Admitted by the parties in their pleadings and established during the trial on themerits are the following material facts:

On June 20, 1960, the plaintiff-appellant file against the defendant-appellee anaction for damages docketed as Civil Case No. 3472 in the Court of First Instance ofNueva Ecija. The complaint alleged that the plaintiff is the absolute owner andactual possessor of a 557,949-square-meter parcel of land in La Fuente, Santa Rosa,Nueva Ecija, and more particularly described in his Transfer Certificate of Title No.NT-16281. The plaintiff-appellant Valisno bought the land from the defendant-appellee's sister, Honorata Adriano Francisco, on June 6, 1959. (Deed of AbsoluteSale, Exh. "A".) The land which is planted with watermelon, peanuts, corn, tobacco,and other vegetables adjoins that of the appellee Felipe Adriano on the bank of thePampanga River. Both parcels of land had been inherited by Honorata AdrianoFrancisco and her brother, Felipe Adriano, from their father, Eladio Adriano. At thetime of the sale of the land to Valisno, the land was irrigated by water from thePampanga River through a canal about seventy (70) meters long, traversing theappellee's land.

On December 16, 1959, the appellee levelled a portion of the irrigation canal so thatthe appellant was deprived of the irrigation water and prevented from cultivatinghis 57-hectare land.

The appellant filed in the Bureau of Public Works and Communications a complaintfor deprivation of water rights. A decision was rendered on March 22, 1960 orderingAdriano to reconstruct the irrigation canal, "otherwise judicial action shall be takenagainst him under the provisions of Section 47 of Act 2152 (the Irrigation Act), as

amended." Instead of restoring the irrigation canal, the appellee asked for areinvestigation of the case by the Bureau of Public Works and Communications. Areinvestigation was granted. LLphil

In the meantime, plaintiff Valisno rebuilt the irrigation canal at his own expensebecause his need for water to irrigate his watermelon fields was urgent.

On June 20, 1960, he filed a complaint for damages in the Court of First Instance(now Regional Trial Court) of Nueva Ecija (Civil Case No. 3472) claiming that hesuffered damages amounting to P8,000 when he failed to plant his fields that year(1960) for lack of irrigation water, P800 to reconstruct the canal on defendantAdriano's land, and P1,500 for attorney's fees and the costs of suit.

On October 25, 1961, the Secretary of Public Works and Communications reversedthe Bureau's decision by issuing a final resolution dismissing Valisno's complaint.The Secretary held that Eladio Adriano's water rights which had been granted in1923 ceased to be enjoyed by him in 1936 or 1937, when his irrigation canalcollapsed. His non-use of the water right since then for a period of more than fiveyears extinguished the grant by operation of law, hence the water rights did notform part of his hereditary estate which his heirs partitioned among themselves.Valisno, as vendee of the land which Honorata received from her father's estate didnot acquire any water rights with the land purchased.

In his answer to the damage suit (Civil Case No. 3472), the defendant FelipeAdriano admitted that he levelled the irrigation canal on his land, but he averred:that neither his late father nor his sister Honorata possessed water rights for theland which she sold to the appellant; that he (the appellee) applied for water rightsfor his land in 1956 and obtained the same in 1958; and that he had a perfect rightto level his land for his own use because he merely allowed his sister to use hiswater rights when she still owned the adjacent land. He set up a counterclaim forP3,000 as damages incurred by him in levelling the land on which the appellant dugan irrigation canal, P2,000 as actual damages, P3,000 as attorney's fees, andexpenses of litigation.

In a decision dated April 21, 1966, the trial court held that the plaintiff had no rightto pass through the defendant's land to draw water from the Pampanga River. Itpointed out that under Section 4 of the Irrigation Law, controversies betweenpersons claiming a right to water from a stream are within the jurisdiction of theSecretary of Public Works and his decision on the matter is final, unless an appeal istaken to the proper court within thirty days. The court may not pass upon thevalidity of the decision of the Public Works Secretary collaterally. Furthermore,there was nothing in the plaintiff's evidence to show that the resolution was notvalid. It dismissed the complaint and counterclaim.

The plaintiff's motion for reconsideration of the decision was denied by the trialcourt. The plaintiff appealed to the Court of Appeals which certified the case to Usupon the legal question of whether the provisions of the Irrigation Act (Act No.2152) or those of the Civil Code should apply to this case. LLpr

The plaintiff-appellant argues that while the trial court correctly held that theSecretary of Public Works may legally decide who between the parties is entitled toapply for water rights under the Irrigation Act, it erred in ruling that the Secretaryhas authority to hear and decide the plaintiff's claim for damages for thedefendant's violation of his (plaintiff's) right to continue to enjoy the easement ofaqueduct or water through the defendant's land under Articles 642, 643, and 646 ofthe Civil Code, which provide:

"Article 642. Any person who may wish to use upon his own estate anywater of which he can dispose shall have the right to make it flow throughthe intervening estates, with the obligation to indemnify their owners, as wellas the owners of the lower estates upon which the waters may filter ordescend.

"Article 643. One desiring to make use of the right granted in thepreceding article is obliged:

"(1) To prove that he can dispose of the water and that it is sufficient forthe use for which it is intended;

"(2) To show that the proposed right of way is the most convenient andthe least onerous to third persons;

"(3) To indemnify the owner of the servient estate in the mannerdetermined by the laws and regulations.

"Article 646. For legal purposes, the easement of aqueduct shall beconsidered as continuous and apparent, even though the flow of the watermay not be continuous, or its use depends upon the needs of the dominantestate, or upon a schedule of alternate days or hours."

The existence of the irrigation canal on defendant's land for the passage of waterfrom the Pampanga River to Honorata's land prior to and at the time of the sale ofHonorata's land to the plaintiff was equivalent to a title for the vendee of the landto continue using it, as provided in Article 624 of the Civil Code:

"Article 624. The existence of an apparent sign of easement betweentwo estates, established or maintained by the owner of both shall beconsidered should either of them be alienated, as a title in order that theeasement may continue actively and passively unless at the time theownership of the two estates is divided, the contrary should be provided inthe title of conveyance of either of them, or the sign aforesaid should beremoved before the execution of the deed. This provision shall also apply incase of the division of a thing owned in common by two or more persons"(Civil Code)

This provision was lifted from Article 122 of the Spanish Law of Waters whichprovided: prcd

"Article 122. Whenever a tract of irrigated land which previously receivedits waters from a single point is divided through inheritance, sale or by virtue

of some other title, between two or more owners, the owners of the higherestates are under obligation to give free passage to the water as aneasement of conduit for the irrigation of the lower estates, and without rightto any compensation therefore unless otherwise stipulated in the deed ofconveyance." (Art. 122, Spanish Law of Waters of August 3, 1866.)

No enlightened concept of ownership can shut out the idea of restrictions thereon,such as easements. Absolute and unlimited dominion is unthinkable, inasmuch asthe proper enjoyment of property requires mutual service and forbearance amongadjoining estates (Amor vs. Florentino, 74 Phil. 403).

As indicated in the decision dated March 22, 1960 of the Bureau of Works "theprincipal issue involved in this case falls under the subject of servitude of waterswhich are governed by Article 648 of the new Civil Code and the suppletory lawsmentioned in the cases of Lunod vs. Meneses (11 Phil. 128) and Osmeña vs. Camara(C.A. 380 62773) which are the irrigation law and the Spanish Law of Waters ofAugust 3, 1866, specifically Article 122 thereof.

The deed of sale in favor of Valisno included the "conveyance and transfer of thewater rights and improvements" appurtenant to Honorata Adriano's property. Bythe terms of the Deed of Absolute Sale, the vendor Honorata Adriano Francisco sold,ceded, conveyed and transferred to Dr. Nicolas Valisno all "rights, title, interest andparticipations over the parcel of land above-described, together with one BerkelyModel 6 YRF Centrifugal Pump G" suction, 6" discharge 500-1500 GPM, with SerialNo. 5415812 and one (1) set of suction pipe and discharge of pipe with elbow,nipples, flanges and footvalves," and the water rights and such other improvementsappertaining to the property subject of this sale. According to the appellant, thewater right was the primary consideration for his purchase of Honorata's property,for without it the property would be unproductive.

Water rights, such as the right to use a drainage ditch for irrigation purposes, whichare appurtenant to a parcel of land, pass with the conveyance of the land, althoughnot specifically mentioned in the conveyance. The purchaser's easement ofnecessity in a water ditch running across the grantor's land cannot be defeated evenif the water is supplied by a third person (Watson vs. French, 112 Me 371, 19 C.J.868-897). The fact that an easement by grant may also have qualified as aneasement of necessity does not detract from its permanency as property right,which survives the determination of the necessity (Benedicto vs. CA, 25 SCRA 145).cdll

As an easement of waters in favor of the appellant has been established, he isentitled to enjoy it free from obstruction, disturbance or wrongful interference (19CJ 984), such as the appellee's act of levelling the irrigation canal to deprive him ofthe use of water from the Pampanga River.

WHEREFORE, the appealed decision is set aside, and a new one is entered orderingthe appellee to grant the appellant continued and unimpeded use of the irrigationditch traversing his land in order to obtain water from the Pampanga River to

irrigate appellant's land. Let the records of this case be remanded to the court a quofor the reception of evidence on the appellant's claim for damages.

SO ORDERED.

Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.